0120063806
11-14-2007
Phaylyn M. Hunt, Complainant, v. Peter D. Keisler, Acting Attorney General, Department of Justice, Agency.
Phaylyn M. Hunt,
Complainant,
v.
Peter D. Keisler,
Acting Attorney General,
Department of Justice,
Agency.
Appeal No. 01200638061
Hearing No. 100-2005-00187X
Agency No. A-03-1039
DECISION
On June 13, 2006, complainant filed an appeal from the agency's March
8, 2006, final order concerning her equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Title VII
of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. �
2000e et seq. The appeal is deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant
worked as a Legal Assistant in the Transnational and Major Crimes
Section of the United States Attorney's Office for the District of
Columbia in Washington, DC. The record reflects that on June 6, 2003,
an attorney (AUSA) asked complainant to prepare a grand jury subpoena
with an attachment and send the package to a specific location by next
day delivery and fax. The package was not transmitted correctly, and
AUSA asked complainant to resend the package with specific instructions.
Complainant resent the package, but she again failed to send the package
properly. Complainant's supervisor instructed her to follow up with
the AUSA regarding her assignment, but complainant failed to do so.
On June 13, 2003, complainant's supervisor asked complainant to meet with
her regarding her work performance and failure to follow instructions,
but complainant refused to discuss the matter any further. In September
2003, complainant was issued a notice proposing a three day suspension,
which was upheld in November 2003.
On August 29, 2003, complainant filed an EEO complaint alleging
harassment and several claims of disparate treatment.2 In September 2003,
complainant filed an amended complaint alleging that she was discriminated
against on the basis of race (African-American) when she was suspended
without pay from November 18-20, 2003.3
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. The AJ assigned to the case granted the agency's
September 6, 2005 motion for a decision without a hearing and issued a
decision without a hearing on November 14, 2005. The agency failed to
issue a final order within forty days of receipt of the AJ's decision,
but, on March 8, 2006, the agency issued a final order stating that
the AJ's decision had become the agency's final action pursuant to 29
C.F.R. � 1614.109(i).
CONTENTIONS ON APPEAL
Complainant did not provide a statement on appeal. In response to the
appeal, the agency requests that we affirm the agency's final action.
ANALYSIS AND FINDINGS
In rendering this appellate decision we must scrutinize the AJ's legal and
factual conclusions, and the agency's final order adopting them, de novo.
See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from
an agency's final action shall be based on a de novo review . . .");
see also EEOC Management Directive 110, Chapter 9, � VI.B. (November 9,
1999). (providing that an administrative judge's "decision to issue a
decision without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be
reviewed de novo"). This essentially means that we should look at this
case with fresh eyes. In other words, we are free to accept (if accurate)
or reject (if erroneous) the AJ's, and agency's, factual conclusions and
legal analysis - including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal
employment discrimination statute was violated. See id. at Chapter 9,
� VI.A. (explaining that the de novo standard of review "requires that
the Commission examine the record without regard to the factual and
legal determinations of the previous decision maker," and that EEOC
"review the documents, statements, and testimony of record, including
any timely and relevant submissions of the parties, and . . . issue its
decision based on the Commission's own assessment of the record and its
interpretation of the law").
We must first determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. The Commission's
regulations allow an AJ to issue a decision without a hearing when
he or she finds that there is no genuine issue of material fact.
29 C.F.R. � 1614.109(g). This regulation is patterned after the summary
judgment procedure set forth in Rule 56 of the Federal Rules of Civil
Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
Finally, an AJ should not rule in favor of one party without holding
a hearing unless he or she ensures that the party opposing the ruling
is given (1) ample notice of the proposal to issue a decision without
a hearing, (2) a comprehensive statement of the allegedly undisputed
material facts, (3) the opportunity to respond to such a statement, and
(4) the chance to engage in discovery before responding, if necessary.
According to the Supreme Court, Rule 56 itself precludes summary
judgment "where the [party opposing summary judgment] has not had the
opportunity to discover information that is essential to his opposition."
Anderson, 477 U.S. at 250. In the hearing context, this means that the
administrative judge must enable the parties to engage in the amount
of discovery necessary to properly respond to any motion for a decision
without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an
administrative judge could order discovery, if necessary, after receiving
an opposition to a motion for a decision without a hearing).
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish a prima facie case by demonstrating that
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
After a careful review of the record, the Commission finds that the AJ
correctly determined that it was appropriate to issue a decision without
a hearing. Assuming arguendo that complainant established a prima
facie case of race discrimination, we find that the agency articulated
legitimate, nondiscriminatory reasons for suspending complainant.
Specifically, the agency indicated that complainant failed to follow her
supervisor's instructions on several occasions in June 2003 and acted
in an unprofessional manner in refusing to meet with her supervisor
to discuss her ongoing performance problems. The agency noted that a
one day suspension and several official reprimands previously issued
to complainant regarding her work performance were also taken into
consideration when determining whether to suspend complainant for three
days in November 2003.
Complainant now bears the burden of proving by a preponderance of
the evidence that the agency's articulated reasons were a pretext
for discrimination. Complainant can do this directly by showing that
the agency's proferred explanation is unworthy of credence. Burdine,
450 U.S. at 256. We concur with the AJ's determination that complainant
failed to provide any evidence of pretext in the record. Complainant did
not submit a statement on appeal, and we are not persuaded, based on
the record of investigation, that complainant has shown the agency's
articulated reasons for issuing her the aforementioned suspension were
a pretext for unlawful discrimination. Furthermore, we find that the
record is devoid of any evidence that the agency's actions were motivated
by discriminatory animus towards complainant's race.
CONCLUSION
The Commission finds that the issuance of a decision without a hearing
was appropriate in this case because no genuine issue of material fact
is in dispute. Complainant failed to present evidence that any of the
agency's actions were motivated by discriminatory animus towards her.
We discern no basis to disturb the AJ's decision.
Accordingly, after a careful review of the record, including arguments
and evidence not specifically addressed in the decision, the agency's
final action is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as the
defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 14, 2007
Date
1 Due to a new data system, this case has been re-designated with the
above-referenced appeal number.
2 The agency dismissed these allegations for being untimely or for failure
to state a claim. Complainant does not address these claims on appeal.
Thus, the Commission will not review the dismissal. See EEOC Management
Directive 110, Chapter 9, � IV.A. (November 9, 1999).
3 Complainant's amended complaint alleged that she was discriminated
against when she was issued a letter of suspension in September 2003.
However, the record reflects that she was only issued a notice of proposed
suspension at that time. The agency ultimately accepted the suspension
claim for investigation with the proper dates (November 18-20) for her
suspension.
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0120063806
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120063806